Supreme Court Deciding Whether Congress May Copyright Public Domain Works

Igor Stravinsky/Wikimedia Commons

The Supreme Court agreed Monday to decide whether Congress may take works out of the public domain and grant them copyright status.

A federal appeals panel, reversing a lower court, ruled in July against a group of orchestra conductors, educators, performers, publishers, film archivists and motion picture distributors who have relied on artistic works in the public domain for their livelihoods. The 10th U.S. Circuit Court of Appeals set aside arguments that their First Amendment rights were breached because they could no longer exploit the works without paying royalties.

For a variety of reasons, the works at issue, which are foreign and were produced decades ago, became part of the public domain in the United States but were still copyrighted overseas. In 1994, Congress adopted legislation to move the works back into copyright, so U.S. policy would comport with an international copyright treaty known as the Berne Convention.

The government argued that Congress adopted what was known as “Section 514″ for its “indisputable compliance” with the convention and to remedy “historic inequities of foreign authors who lost or never obtained copyrights in the United States.”

“In other words, the United States needed to impose the same burden on American reliance parties that it sought to impose on foreign reliance parties. Thus, the benefit that the government sought to provide to American authors is congruent with the burden that Section 514 imposes on reliance parties. The burdens on speech are therefore directly focused to the harms that the government sought to alleviate,” the appeals court wrote.

Anthony Falzone, executive director of the Fair Use Project and Stanford University and a plaintiff’s lawyer in the case, urged the justices to take the case.

“The point of copyright protection is to encourage people to create things that will ultimately belong to the public. While the scope and duration of copyright protection has changed over time, one aspect of the copyright system has remained consistent: once a work is placed in the public domain, it belongs to the public, and remains the property of the public — free for anyone to use for any purpose,” he wrote in a blog post.